6.  The applicant was born in 1956 and lives in Msida.
7.  On 8 September 2009 the applicant was arrested. A search of a hotel room close to where he was apprehended revealed a number of packets of cannabis (weighing approximately 15 kg). The following day he was questioned and made a statement. On 10 September 2009, two days after his arrest, he and some other Maltese and foreign suspects were charged with the possession of cannabis not for their own exclusive use and conspiracy for the purposes of drug trafficking. They were brought before a magistrate (sitting in the Court of Magistrates as a Court of Criminal Inquiry) and remanded in custody.
8.  On 25 March 2010, following multiple bail requests which were rejected by the relevant courts, the applicant lodged constitutional redress proceedings, complaining ‒ inter alia ‒ that there had been a breach of his rights under Article 5 § 3 of the Convention and requesting his immediate release as per Article 5 § 4.
9.  By a judgment of 12 August 2010, following a thorough assessment of the factual circumstances and the Court’s relevant case-law, the Civil Court (First Hall) in its constitutional jurisdiction dismissed the applicant’s claims, and thus did not order his release. It pointed out, however, that the decision was without prejudice to any remedies which he would be entitled to request at the proper time and if the need arose.
10.  The applicant appealed. On 18 January 2011, pending the constitutional appeal proceedings, the applicant was granted bail subject to certain conditions (including a curfew order and reporting to the police twice daily, as well as residing in an apartment rented for that purpose) against a number of guarantees, including a bail bond in the form of a deposit of 50,000 euros (EUR) and a further personal guarantee of EUR 15,000.
11.  Since the specified amount was not paid, he remained in custody.
12.  By a judgment of 14 February 2011 the Constitutional Court found a breach of the applicant’s rights under Article 5 § 3 [and § 4] in view of the ongoing passage of time since the first-instance judgment, during which period the applicant’s requests had continued to be repeatedly rejected. Although the court was empowered to order release and alter the bail conditions imposed ‒ noting that by the time of the judgment the applicant had been formally granted bail ‒ it did not deem it appropriate to order release as or take any other action. It awarded the applicant EUR 1,000.
13.  On 18 February 2011 the applicant asked the investigating court (Court of Magistrates as a Court of Criminal Inquiry) to reduce the amount of the bail deposit.
14.  By a decision of 22 February 2011 the Court of Magistrates, having heard submissions, reduced the deposit to EUR 40,000 and increased the personal guarantee to EUR 60,000.
15.  On 29 March 2011, still unable to pay, the applicant asked the court to reduce the deposit even further. He referred to his wife’s testimony to the effect that the applicant and his family did not possess such funds.
16.  By a decision of 4 May 2011 the Court of Magistrates, having heard the submissions, reduced the deposit to EUR 15,000 and reduced the personal guarantee to EUR 30,000 (allowing the option of a third-party surety for that amount). However, it required that, before any surety could assume the obligation, proof of the surety’s financial capacity to furnish the requested amount be submitted.
17.  A further request to reduce the amounts was filed by the applicant on 19 July 2011. He reiterated that he did not have the financial means to pay the specified deposit. He stated that he had four dependent children and a wife back in the United Kingdom who barely had enough money to live on and struggled to meet their financial obligations, including paying the children’s school fees and the mortgage. He further submitted that since he had been detained in Malta, the family business had had to be wound up and, to make matters worse, his wife’s medical condition, which prevented her from being gainfully employed, had deteriorated. The family had been living on their meagre savings, of which very little was left at that stage. The amount required for the deposit was, in his view, not reasonable considering his means and financial status. Moreover, he had been in custody for over twenty months and despite the Constitutional Court having found a violation of his rights under Article 5 § 3 in respect of the bail refusals, he had to date not been able to enjoy that right in practice. The applicant’s wife testified to this effect.
18.  By a decision of the Court of Magistrates of 22 July 2011, after hearing the parties’ submissions and the applicant’s wife’s testimony, the court rejected the request. It noted that, according to the documents presented, the matrimonial home (which was a substantial property, demonstrating they were not an average family) was still owned by the applicant and his wife, although burdened with a substantial mortgage. Moreover, the applicant’s wife had sold off the family shoe business in 2010 “implying the inflow of a substantial amount of money within the family.” In the light of previous decisions, and the fact that the accused had no ties with Malta, the court considered that a bail deposit of EUR 15,000 was commensurate with the charges preferred against him.
19.  The applicant filed a further request on 26 July 2011, pointing out that his wife had not stated that the family business had been sold but rather that it had closed down since the applicant was in detention and the applicant’s wife was too ill to run the business. She had also emphasized that the financial means at their disposal were limited since the applicant had not been working for the past two years and she was precluded from working due to her illness, meaning that their savings had been used to meet the daily needs of the family and to pay the mortgage. Moreover, although the house seemed to be of a certain value, this had to be seen in the context of the British property market and the fact that putting the house up for sale was not envisaged. The applicant thus asked the court to review his wife’s testimony and the documents produced by her.
20.  On 12 August 2011 the applicant instituted constitutional redress proceedings (see below).
21.  Following the first-instance judgment of the constitutional jurisdiction (see below), by a decision of 14 March 2012 the Court of Magistrates ‒ after hearing further submissions ‒ reduced the bail deposit to EUR 7,000 and increased the personal guarantee to EUR 60,000. It drew the applicant’s attention to the other bail conditions previously imposed which were still in effect.
22.  Following a further request submitted on 23 April 2012, the Court of Magistrates on the same day allowed his request for modification of the bail conditions, reducing the deposit to EUR 5,000 and increasing the personal guarantee to EUR 70,000. There were other changes to some of the original conditions (such as having to report only once a day to the police station). The applicant deposited the sum of EUR 5,000 and was released on the same day.
23.  In the meantime, on 12 August 2011 the applicant instituted a new set of constitutional redress proceedings, complaining, inter alia, of a breach of Article 5 § 3 in the light of the high guarantees set by the Court of Magistrates, as a result of which it had not ‒ in practice ‒ been possible for him to be released on bail. The applicant’s wife gave evidence on 20 September 2011. She stated that the shop had closed down as she could not run it due to childcare and health problems, and she explained that she had sold the stock at rock-bottom prices. She described her health problems, substantiating them by means of medical reports. She further testified that the bank had foreclosed due to failure to pay the mortgage on the house, resulting in them losing their family home with all the money from the sale going to the bank. The wife stated that the family was living on state benefits, that they had no savings, that their household effects and their car had been sold, and that she had been sending money to her husband to buy necessities and was renting a flat in Malta as a bail address for the applicant.
24.  By a judgment of 16 January 2012 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s complaint under the aforementioned provision. It observed that the Court of Magistrates had based its decision on information supplied by the applicant and as of the date of its last decree the financial and personal details available to the court had been insufficient to permit any assessment of the reasonableness of the conditions imposed. Only at a later date did more information become available, demonstrating that the applicant was to blame “when he himself brought no clear evidence of his financial and presence [recte: present] situation until late 2011.” In the light of this, the court held that the applicant’s claim was not justified. However, since by this time the applicant’s personal and financial situation was clearer, though the information was not exhaustive, the court invited the Court of Magistrates to re-evaluate the conditions imposed following the application filed by the applicant.
25.  The applicant appealed, arguing that various items of documentation including bank statements had been presented to the court; moreover, factual mistakes had been made, such as the misconception that his business had been sold and not closed down.
26.  By a judgment of 12 November 2012 the applicant’s appeal was rejected by the Constitutional Court. It observed that evidence before the Court of Magistrates had been scanty, with the exception of documents showing that the couple owned a house worth GBP 700,000 (approx. EUR 807,000) ‒ subject to a mortgage of GBP 381,000 ‒ as well as a shoe business. However, on presentation of further evidence the level of financial guarantees was lowered, the relevant court having realised that, despite the passage of time, the applicant remained unable to pay and the grounds for pre-trial detention were becoming less relevant.
27.  The applicant lodged a request for retrial, which was rejected by a judgment of 28 April 2014.
28.  Following his actual release on bail, the applicant made various requests for alteration of the conditions imposed, in particular permission to return to the United Kingdom for specific events or short intervals between court hearings to see his family. One such request was granted upon condition of presentation of the air ticket and deposit of a EUR 20,000 guarantee. It would appear that this condition could not be fulfilled. Subsequent requests were denied in view of the applicant’s inability to give any financial guarantees and considering that the applicant’s family could join him in Malta.
29.  As mentioned above, on 10 September 2009 the applicant was arraigned in court (the Court of Magistrates as a Court of Criminal Inquiry), where he pleaded not guilty to the charges. The following is a list of hearings which took place subsequently, as is apparent from the documents submitted:
30.  On 14 September 2009 the prosecuting officer and eight other police officers gave evidence, and documents were produced. On 22 September 2009 further documents were produced, and a pharmacist, another police officer and a third person gave evidence. An expert in communications technology and a translator were appointed. The former was instructed to obtain all phone data relating to the applicant between 20 August and 10 September 2009.
31.  On 3 November 2009 a copy of the inquiry was produced and one person gave evidence and produced documents. On 13 November 2009 another two police officers and a lawyer gave evidence and produced documents. A fingerprints expert was appointed. Another hearing was held on 11 December 2009. On 16 December 2009 the communications technology expert and two other individuals gave evidence. On 21 January 2010 the fingerprints expert gave evidence. On 2 February 2010, three witnesses who had already been heard gave further evidence, together with another two individuals. On 11 February 2010 another witness gave evidence and on 12 February 2010 a decree was issued by the court.
32.  On 23 March 2010 the case was adjourned as the magistrate was indisposed. On 25 March 2010 a doctor and the prosecuting officer gave evidence; the latter declared that only three witnesses remained to be heard.
33.  On 4 May 2010 the case was adjourned as the magistrate was indisposed. On 5 May 2010 a police inspector and another person gave evidence and were cross-examined. The co-accused’s lawyer complained that the proceedings were protracted. On 11 May 2010 the case was adjourned due to technical problems. On 22 June 2010 two witnesses who had already given evidence were further heard and cross-examined. The applicant’s lawyer reserved the right to further cross-examination, and requested that a witness be re-heard.
34.  On 2 July 2010 the communications technology expert was cross-examined, and it transpired that he had not asked the foreign phone providers for the records of the calls in the relevant period (see above). Another witness failed to appear, and the applicant’s lawyer requested that another witness be re-heard. On 6 July 2010 the applicant made a request for telephonic data from the United Kingdom (relating to his co-accused). On 14 July 2010 the Attorney General replied that the correct procedure to obtain such data would be by means of letters of request. On 19 July 2010 the Court of Magistrates ordered the applicant to abide by this procedure.
35.  On 4 August the hearing was adjourned. On 16 August 2010 the applicant requested the acquisition of text messages from two mobile phones in the period August to September 2009. On 17 August 2010 the Attorney General reiterated the procedure that should be used. On 19 August 2010 the applicant reiterated his request and the parties made oral submissions. On 20 August 2010 the Attorney General filed a note attaching samples of letters of request to aid the applicant making his request. On the same day and again on 7 September 2010 the applicant contested this procedure. On 15 September 2010 the applicant informed the court of his new legal representatives; the Attorney General gave evidence. On 27 September 2010 the applicant filed a request for letters rogatory to be sent to the United Kingdom. On 30 September 2010 it was noted that the aforementioned request was defective – the court reserved its decision as to whether to suspend the terms applicable to the compilation of evidence.
36.  On 1 October 2010 the applicant submitted a correct request for the telephonic data (August – September 2009). On 12 October 2012 the prosecution agreed to forward the letters in question to the relevant authorities – the court suspended the terms applicable to the compilation of evidence. On 29 October 2010 further evidence was submitted and cross-examinations were carried out. Other hearings were held on 10 and 17 November 2010. On 26 November 2010 the hearing was adjourned as one of the inspectors was indisposed.
37.  On 3 December 2010 the court noted that the letters rogatory had still not been forwarded to the United Kingdom and urged the Attorney General to inform the court about the progress of the letters. On 6 December 2010 the Attorney General stated that data had been missing in the documentation provided by the applicant. On 10 December 2010 it was noted that the data in question was still missing. On 20 December 2010 the hearing was adjourned because the presiding magistrate was indisposed. On 21 December 2010 the Attorney General returned the letters rogatory filed by the applicant to the court as they had not included all the relevant data, in particular the extract of the law relating to the charges levied against the applicant was missing. The court was informed by its staff that this document had not been submitted by the Attorney General. To avoid further loss of time, the applicant volunteered to re-submit the letters rogatory together with a printout of the relevant law bearing the visto of a representative of the Attorney General and the court granted the request. According to the Government, on 29 December 2010 it became apparent that the letters of request could not be processed by the United Kingdom central authority.
38.  A further hearing took place on 18 January 2011, at which it was ordered that an update from the United Kingdom authorities be forwarded to the parties. On 1 February 2011 the applicant was asked whether he wished to add or alter anything to the letters rogatory and on 11 February 2011 he was ordered to file a note with all the information necessary for the execution of the letters of request. On 18 February 2011, following an unfavourable reply from the United Kingdom Central Authority, the applicant asked the Attorney General to ascertain whether or not the telephone service provider was still in possession of the data requested in the letters rogatory. On 22 February 2011 evidence from two witnesses was heard.
39.  On 3 March 2011 the applicant filed fresh letters of request, which were sent to the United Kingdom on 17 March 2011. On 9 March 2011 the case was put off as the magistrate was indisposed. On 16 March 2011 an inspector gave evidence and the Attorney General was asked to give an update about the letters rogatory, which was done the following day. On 29 March 2011, the case was postponed for an unspecified reason.
40.  On 7 April 2011 one witness was heard and on 19 April 2011 another witness produced a document as evidence. On 27 April 2011 the case was adjourned. On 3 May 2011 the court stated that it would decide pending applications in camera. Another witness was heard on 13 May 2011. On 20 May 2011 the court was still waiting for the letters rogatory, so the case was adjourned. On 2 June 2011 the United Kingdom Central Authority replied, and ‒ following orders by the court of 3 and 15 June on 16 June 2011 ‒ a note was filed in court by the Attorney General, which was read out in open court on 24 June 2011.
41.  At the hearings on 6, 19 and 29 July 2011 the court declared that it had no news regarding the letters rogatory from the United Kingdom. On 31 August and 13 September the court urged the Attorney General to submit the information obtained concerning the letters rogatory. On 27 September 2011 a further reply from the United Kingdom central authorities was received, but a hearing of the same day was adjourned due to a bomb threat at the law courts. On 13 October 2011 the court received the response to the letters rogatory, stating that the data requested had been irretrievably lost. It re-activated the terms applicable to the compilation of evidence.
42.  On 2 November 2011 a police officer was cross-examined. On 22 November 2011 the case was adjourned to enable the defence lawyers to communicate with the accused. The case file was forwarded to the Attorney General. Apparently another two hearings took place on 21 December and 27 January, when the case was adjourned on the first occasion because the co-accused was not present, and on the second for an unspecified reason. On 2 February 2012 the case was adjourned for no apparent reason and on 3 February 2012 the case was again adjourned to enable the defence lawyers to communicate with the accused. The case file was forwarded to the Attorney General.
43.  On 13 March 2012 the case was again postponed until the next day for no apparent reason. On 14 March 2012, following a request by the Attorney General to restart the proceedings (Article 432 of the Laws of Malta), the charge was read out and, sworn under oath, the applicant refused to answer the questions put to him in the examination. His co-accused was questioned. The parties declared they were relying on all the evidence already produced and a prima facie decree was handed down. Thus, proceedings were then restarted and hearings were held on 19, 20, and 23 April 2012. On 5 May 2012 the case was adjourned and on 6 July 2012 the applicant requested that a witness be summoned. However, on 17 July the case was again adjourned because the witness in question was in hospital.
44.  On 28 August 2012 the applicant complained that the Attorney General had done nothing to preserve the telephone recordings which were crucial to the defence. Further evidence was heard at the hearings of 11 September 2012, 18 October and 19 December 2012, 29 January, 5 February, 14 March (when new letters rogatory were also presented), and 20 March 2013. On 30 April and 16 May 2013 the case was adjourned for an unspecified reason. On 3 May 2013 the applicant reiterated that he would like to proceed with a number of cross-examinations. The prosecution objected to the request to have the same witnesses heard again.
45.  On 26 June 2013 the applicant requested an adjournment as his lawyer was not available. A hearing took place on 25 July 2013. Further evidence was heard on 6 August 2013. On 17 September 2013 the applicant requested an adjournment. On 24 September 2013 further oral submissions were made and evidence heard, the prosecution stated that the letters rogatory did not comply with the legal requirements. The court suspended the terms applicable to the compilation of evidence.
46.  On 3 October 2013 the case was adjourned for oral submissions. The case was adjourned again on 15 and 25 October 2013 for oral submissions, inter alia, by the Attorney General concerning an application for contempt of court in his regard.
47.   Replies to the letters rogatory having been received, the court re-activated the terms applicable to the compilation of evidence on 5 November 2013. It adjourned the case once again for oral submissions. Further evidence was heard on 12 November 2013. Oral submissions were made on 28 November 2013.
48.  On 15 January 2014 the expert gave evidence and the case was adjourned to 4 February and eventually to 26 February 2014 at the applicant’s request. On 11 March 2014 the applicant stated he intended to file fresh letters of request. Letters rogatory, were exhibited in court on 22 April 2014.